


Ministry v. Harry Potter: An Analysis of Wizarding Britain’s Legal System

by kitsunerei88



Category: Harry Potter - J. K. Rowling, Original Work
Genre: A Lawyer Has Too Much Time On Their Hands, Essays, Gen, How Does Law Work in Harry Potter, Law, Lawyers Writing Law, Legal Systems, Meta, Worldbuilding
Language: English
Status: Completed
Published: 2020-10-14
Updated: 2020-10-14
Packaged: 2021-03-09 00:48:47
Rating: General Audiences
Warnings: Creator Chose Not To Use Archive Warnings
Chapters: 1
Words: 5,698
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/27016036
Author URL: https://archiveofourown.org/users/kitsunerei88/pseuds/kitsunerei88
Summary: Harry Potterhas three canonical trials and many other references to legal processes and systems which are never really explained in their totality. The few glimpses we do see are puzzling: why is Harry being tried before the full WIzengamot? Why does Fudge have such a huge role? What about Umbridge, and how does it all work? It's easy to say that JKR just didn't think of a cohesive legal system (and that may very well be correct), but what happens if we do an analysis of the legal processes shown inHarry Potter?Or: A lawyer takes onHarry Potter, and discovers that all witches and wizards are noble. Actually.
Comments: 25
Kudos: 87





	Ministry v. Harry Potter: An Analysis of Wizarding Britain’s Legal System

## Introduction

In the course of writing [_Revolutionary Arc_](https://archiveofourown.org/series/1722145), I learned from many of you that you really, deeply appreciated accurate trial scenes and lawyer commentary. The reception of the beginning of [_Vanguard_](https://archiveofourown.org/works/22973080/chapters/54917875) and [_there is beauty_](https://archiveofourown.org/works/23958034) was particularly gratifying; all my legal scenes, from the memo [_Ministry v. Aldon Étienne Blake Rosier_](https://archiveofourown.org/works/24278689), to the commentary relating to prisoners of war and responsibility to protect doctrine in [_Cataclysm_](https://archiveofourown.org/works/23122846/chapters/55328272), to police disciplinary procedures in [_Re: Alastor Moody, RAC-00214/91_](https://archiveofourown.org/works/24690307/chapters/59670592), have been well-received. It seems that many of you are hungry for more accurate depictions of law as it might work in _Harry Potter_ or any other fantasy world. While I might question your taste a little, the fact remains that I love law, I love exploring how law might work in fantasy contexts, and I am happy to oblige.

I’ve heard from many of you that JKR’s legal system makes no sense, or that there isn’t enough there that anything can really be said about it. This is not wholly correct—intentionally or not, there is a structure that can be gleaned solely from the canon, and there are several broad conclusions that can be made from that canon and from the historical and cultural context. In this essay, I will be canvassing all three canonical trial scenes and a bit of legal history to provide some of those broad conclusions, and at the end will add in some thoughts on how we might expect a “canonical” Wizarding British legal system to work.

* * *

## Caveats

I am not English. I am not called to the bars of either England or Wales, though as you’ll see, that’s not really that relevant here. I’m not a historian. This is all a bit speculative, and I have no idea what was going through JKR’s head when she was plotting—though, given how much of her papers, etc, that she has released over the years, I’m inclined to think that she didn’t actually plan this but likely based some of the scenes off the trial contained in Dorothy Sayers’ 1926 novel _Clouds of Witness_. I live at the mercy of the Word of God. All my research on this comes down to less than a handful of papers and Wikipedia because this is a meta-essay on AO3, and I’m not writing a thesis.

* * *

## The Three (3) Canonical Trial Scenes: What can they tell us?

In this section, I will be going through the three canonical trial scenes included in the seven Harry Potter books, as well as a few other mentions throughout the main series. I assume that everyone reading this has a better-than-average knowledge of the Harry Potter canon, and therefore won’t be going into details on the actual plot or what happens, but will just be pointing out the interesting and salient points of what each scene can tell us about the structure of that proceeding.

### (1) The Death Eater Trials in the _Goblet of Fire_

The first trial scenes that we see are those in Dumbledore’s Pensieve, for Igor Karkaroff, Ludo Bagman, and the Lestranges and Bartemius Crouch Jr.[1] First, in Karkaroff’s trial:

  * The trial room is described as enormous, with rows of witches and wizards sitting around every wall on what seem to be benches rising in levels.
  * An empty chair sits in the bottom, at the very centre of the room, with chains on the arms to restrain the person sitting in it.
  * Crouch Sr. acts in the role of a prosecutor, and Moody specifically notes that he has “made a deal” with Karkaroff. Throughout the proceeding, Crouch interrogates Karkaroff.



In Ludo Bagman’s trial:

  * Crouch, in this scene, specifically calls the body of people in the room the “Council of Magical Law”.
  * Crouch again appears to act in a role something like a prosecutor and recommends a sentence of imprisonment in Azkaban.
  * There appears to be a jury, which is on the right side of the room, but no numbers are given for the number of jurors. No one votes to convict Bagman, and one of the jurors specifically sits up to congratulate him on a recent Quidditch victory on behalf of England.



Finally, for the Lestranges and Bartemius Crouch Jr.:

  * There are now four chairs in the bottom of the room, and it appears that the Lestranges and Bartemius Crouch Jr. are being tried together.
  * Crouch again calls the body of people in the room the “Council of Magical Law”.
  * In this case, Crouch acts more like a judge than he does a prosecutor, instead only reading out the facts as they were apparently entered into evidence and charging the jury for a response.
  * Crouch’s charge to the jury is interesting: “I now ask the jury to raise their hands if they believe, as I do, that these crimes deserve a life sentence in Azkaban (emphasis added)”.
  * The jury again sits on the right-hand side of the dungeon, but no numbers are given.



### (2) Harry’s Trial in the _Order of the Phoenix_

The next major trial scene we see is one for Harry himself, in the _Order of the Phoenix_.[2] In many ways, this scene is even more instructive than the last set of trial scenes:

  * Harry appears to be attending before the Wizengamot, the body that passes law for the Ministry of Magic. We know this because Fudge says, when Harry explains that he is late because he didn’t know the time had been changed, “This is not the fault of the Wizengamot.”
  * Harry describes being in a bowl-like room, with approximately fifty people looking down on him.
  * Fudge describes the key personnel in the room as follows: “Interrogators: Cornelius Oswald Fudge, Minister for Magic; Amelia Susan Bones, Head of the Department of Magical Law Enforcement; Dolores Jane Umbridge, Senior Undersecretary to the Minister.” Percy is there as the “Court Scribe”.
  * Dumbledore, when he attends, describes himself as a “witness for the defence”. Despite so calling himself, Dumbledore throughout the scene takes on a role far more similar to that of defence counsel; he calls another witness (Mrs. Figg) and makes legal arguments on behalf of Harry.
  * Harry is cleared when the majority of the people in the room vote to clear him of the charges, and he notes that only a “half-dozen” people and Fudge vote to convict him.
  * Arthur expresses surprise that Harry was tried by the full Wizengamot.



Obviously, Harry’s trial here is a bit of a political “gotcha!” moment, but the fact that the structure looks broadly similar to that shown in the _Goblet of Fire_ is indicative that there is a legal structure in place of some kind.

### (3) The Muggle-Born Registration Commission in the Deathly Hallows

In some ways, the legal proceedings in the _Deathly Hallows_ are a bit of an outlier, because they’re not like the two previous trial scenes in the least. There are plenty of in-universe reasons why this might be the case (it’s clearly a new process set up specifically to prosecute Muggle-borns for the crime of being a Muggle-born), but the choices made are still interesting. Particularly:[3]

  * Umbridge mentions, early in the chapter, that she’s hearing 10 cases that day of accused Muggle-borns.
  * The hallways outside the courtrooms are patrolled by Dementors, and Muggle-borns are described as sitting on hard, wooden benches awaiting their turn.
  * Unlike either of the two trial scenes, the room is small and the only people in attendance are Umbridge, as the Head of the Muggle-born Registration Commission; Yaxley, a Death Eater; and Hermione, who is there in in the guise of Mafalda Hopkirk, is taking notes. They sit on a raised platform behind a balustrade, where Umbridge’s Patronus patrols to protect them from the Dementors.
  * The Muggle-born sits in a single seat in the middle of the floor beneath the raised platform, and chains snake up from the chair to bind them in place.
  * Umbridge asks the questions, and there appears to be no one acting in defence of the Muggleborns.



### (4) Other Mentions

There are several other mentions and scenes which appear to engage the law throughout the seven books, but I believe the three below are the most prominent and indicative. If I’ve missed any, feel free to leave me a comment on it, because I didn’t do an exhaustive review of all seven books.

  * First, in the _Chamber of Secrets_ , after Harry and Ron steal the flying Ford Anglia, Arthur faces an enquiry at work and is fined fifty Galleons for having bewitched a Muggle car.[4] This doesn’t appear to have been treated in the form of a trial with a hearing, but an administrative process with a fine at the end.
  * Second, in the background through the _Prisoner of Azkaban_ are Hagrid and Buckbeak. Buckbeak is accused of being a dangerous creature and is up for execution, and it’s clear that there is first a hearing (which Hagrid flubs), and then there is an appeal (which is rejected on the day of the execution itself). The procedure of this isn’t known, because while Hermione and Ron are involved in preparing for the hearing and appeal, none of them attend. However, we know from the appeal that there are very few people who attend—only two officials from the Committee for the Disposal of Dangerous Creatures, Minister Fudge, and Macnair, the executioner.[5]
  * Third, the treatment of Winky in the _Goblet of Fire_ is instructive. Amos Diggory, a member of the Department for the Regulation and Control of Magical Creatures, questions her without any seeming opposition as to the procedure. Crouch later notes that Diggory would have normally wanted to take her into custody for further questioning but asks that he not do so and sacks her instead.[6] This suggests at minimum that Crouch has some sort of claim on Winky, but more likely that Winky, sentient or not, is property.
  * Fourth, Sirius didn’t have a trial before he was sent to Azkaban, specifically saying: “Oh, I know Crouch all right. He was the one who gave the order for me to be sent to Azkaban—without a trial.” Sirius further notes that Crouch used to be the Head of the Department of Magical Law Enforcement.[7]



### What can this tell us?

Already, we can draw certain conclusions about what the law looks like in Wizarding Britain. Notably:

  * There is no separation whatsoever between the judiciary and the executive or legislative branches of government, which is probably why every full trial scene is hugely impacted by the politics and public sentiment—see, for example, the trial of Ludo Bagman as compared to the trials for the Lestranges and Crouch Jr.
  * The Head of Magical Law Enforcement, if not the Minister for Magic, acts in the role of a prosecutor _and_ a judge. They seem to call themselves “Interrogators”, and there can be more than one. They ask questions of witnesses and make deals with the accused, but they also instruct the “jury” who votes.
  * There is no judicial independence in terms of the investigation into a case and the trial thereof. The Head of the Department of Magical Law Enforcement is the “judge”, even though they likely directly participated in the organization of the case against the defendant. This would be like having the Attorney General, the District Attorney, or the Crown Attorney be the judge for a case that they had also been involved in preparing.
  * There are no lawyers. None of the accused in any scenes have counsel, and Dumbledore specifically identifies himself as a “witness for the defence” even if he acts in the role of defence counsel. The Interrogators never indicate that they are lawyers. Indeed, if there are lawyers or judges, they never appear, not even in a trial scene, so there is probably no legal profession as we’d recognize it in Wizarding Britain.
  * Due process rights, or a defendant’s rights as to the procedure, appear to be limited or practically non-existent. First, there seems to be no issue with trying all three of the Lestranges and Crouch Jr. together, though arguably some of them may have had defences to advance aside from the others, e.g. “I was threatened by Bellatrix and forced to help”. Second, Harry doesn’t seem to be entitled to a minimum of notice of the change in his hearing. Third, the entire Muggle-born Registration Commission. Fourth, Sirius didn’t have a trial at all before being sent to Azkaban, and it doesn’t seem like there were any recourses available to him to challenge his conviction on that basis. Finally, at no point do there appear to be written reasons for a decision—there appear to be notes or transcripts for a case, but no written reasons to preserve why a judge or other decision-maker ruled in the way that they did.
  * There is little mention of case law, or of precedent. This is not a common law system (where judges are able to make law through cases) but the frequent mention of statutes doesn’t fully rule out civil law (where the law is fully codified and only enforced by judges). The only reason I say “little” instead of “no” is that in the _Prisoner of Azkaban_ , Hermione and/or Ron do mention specific cases in the past, but they do not appear to be precedents that must be followed. Indeed, without written reasons for a decision, it is more likely than not that _stare decisis_ , or the principle that precedent cases need to be followed, simply doesn’t apply in the wizarding legal system.
  * Throughout all seven books, little information was given about what was legal or not in the wizarding world, even to Harry who is relatively new to the wizarding world. Now, Harry probably wouldn’t go looking for the laws of his new world unless they slapped him in the face, but there is an open question about the extent to which the law is codified, or written down. Certainly Hermione, Dumbledore, and others mention multiple statutes, but there may not be a “Criminal Code” as most people in civil jurisdictions and some common law jurisdictions would think of it.
  * There are different rules for creatures, even sentient creatures, than there are for wizards. Further, with the example of the Muggle-born Registration Commission, this stratification of society could be an indicator that certain classes of society have legal rights and privileges that other groups do not have.



That’s all interesting enough, but where do we go from here? Is there an actual, real-world analogue that would make sense as an inspiration for Wizarding Britain’s bizarre legal system? How does this work in Britain’s historical context, or does it work at all in the birthplace of the common law?

Honoured members of the jury, I submit to you that the answer is yes.

* * *

## The Trial of Peers in Great Britain

An accused is entitled to a trial before a jury of his peers. Nowadays, we usually just take this to mean that they’re entitled to a trial before a jury made of twelve people living in their communities, who must render a unanimous verdict. But at one point in time, this did have a different meaning.

### History

Peers are those who hold peerages, i.e., for our purposes, the nobility. The British peerage has historically had privileges which were not available to the common public, of which three survived into the 20th century: the right to be tried by other peers of the realm instead of juries of commoners (revoked in 1948), the right to be free from arrest in civil (but not criminal) cases, and access to the sovereign to advise him or her on matters of the state.[8] The right to be free from arrest is considered to be extremely limited, if it exists at all, and while the final privilege has not been revoked, it is not exercised today. The only one of these that is interesting for our purposes is the right of peers of the realm to be tried before other peers of the realm instead of juries of commoners.

The right of peers to be tried solely by other peers seems to have its originals in political feudalism, whereby vassals owed suit of court to their lords and were triable only by their co-suitors.[9] Without going into too many other details, this right was fought over as between the monarchy on one hand and the barons and lords on the other, and was only formalized by statute in 1341.[10] The right of peers was limited to criminal jurisdiction, and only to charges brought by indictment (i.e. felonies, or serious charges); charges brought by other means could proceed in the ordinary courts.[11] By the reign of Henry VII of England (1485-1509), the right to trial by peers of the realm had coalesced into 2 forms:

### (1) Trial in the Lord High Steward’s Court

Trial in the Lord High Steward’s Court occurred before a group called the Lords Triers, which by custom were never less than 23. A conviction or acquittal required a majority vote with a minimum of 12. In practice there were between 20 and 35 Lords Triers at any given time. The Lords Triers acted much as a traditional jury, weighing in only on questions of fact, while the Lord High Steward weighed in on questions of law.[12]

The Lords Triers were appointed by the Crown, which meant that in general, only the Lords that agreed with the monarch’s position were ever appointed to the Lord High Steward’s Court. In 1695, this practice was ended, and thereafter all trials were held in the House of Lords. In theory, trial in the Lord High Steward’s Court was only to happen if the House of Lords was not sitting at that time.[13]

No appeal lay from the Lord High Steward’s Court.[14]

### (2) Trial in the House of Lords

A trial in the House of Lords, also known as the High Court of Parliament, was chaired, again, by the Lord High Steward. At minimum, twelve needed to attend and the verdict and sentence was given by majority vote, but theoretically all peers needed to attend if summoned. The House would deliberate both the questions of fact and the questions of law and would deliver the verdict and determine any sentence to be imposed. The sentence had to be in accordance with the law.[15]

Peers could also claim “privilege of peerage”, which let them escape punishment if convicted of a crime, if it was their first offence. Privilege of peerage did not apply to either treason or murder, and it was formally abolished in 1841.[16]

There was no appeal from the House of Lords since it was also the final appellate court in Britain until the establishment of the UK Supreme Court in 2009.[17]

### Trial Procedure

It would also appear that there may not have been an absolute right to counsel. In the case of Sir Nicholas Throckmorton in 1553, Throckmorton was, by the custom of the time, not permitted to have counsel and was required to defend himself.[18] It should be noted that Sir Nicholas Throckmorton was not a part of the peerage, but the landed gentry, and that he was not entitled to a peer trial and did not receive one.

Peer trials evolved both as a part of and in reaction to the developing common law at the time. Peers were insistent on being tried only by other peers because they did not want to be judged by commoners (who, it must be said, likely had no reason to care for them). While peers could only be judged by other peers, the common law legal system was already taking root, with legally trained judges hearing cases and making law. Both the High Court of Parliament and Lord High Steward’s Court were heavily dependent on the “advisory royal justices”, i.e. commoner judges who were trained in law.[19]

Lovell argues in his paper, _The Trial of Peers in Great Britain_ , that overall the system of peer trials didn’t end up being an advantage for the peers in question; there were no appeals from conviction, and therefore no opportunity to challenge the other peers on their determinations of fact or of law. Of thirty-four peer trials canvassed in the paper from 1499 to 1935, the peers released 9 acquittals, 5 cases went by privilege of the peers, and 20 were convicted.[20]

* * *

## Bringing It All Together: Analysis

The structure of a House of Lords peer trial, compared to the structure shown in _Harry Potter_ , result in notable similarities:

  * The Wizengamot appears to be, like the House of Lords, a predominantly legislative body that also hears law.
  * There were often more than twelve people hearing a case. In the situation of the Lord High Steward’s Court, there were at any time between 20 and 35 Lord Triers; for the House of Lords, in theory all peers could be compelled to attend to hear a matter. The number of jurors in the Death Eater trials is never named, but Harry reports being tried by more than fifty people in the _Order of the Phoenix._
  * The Death Eater trials in the _Goblet of Fire_ appear to be closer to the Lord High Steward’s Court than a full Wizengamot trial—there does appear to be a defined jury, even if the number isn’t included, and Crouch calls it the “Council of Magical Law”. As noted above, the Lord High Steward’s Court only sat when the House of Lords was not in session; one could theorize that in the mayhem of Voldemort’s first reign of terror, the Wizengamot was simply not in session. Crouch doesn’t seem to have a vote, as the Lord High Steward didn’t in his Court, since it was the Lords Triers who made the determinations of fact.
  * By comparison, Harry’s trial in the _Order of the Phoenix_ appears closer to a House of Lords trial before the full Wizengamot. In this, all three of the Interrogators have a vote (as did the Lord High Steward in the House of Lords—he was always peer in his own right), and there’s no real distinction between their functions determining questions of law, as compared to questions of fact. We know that Fudge and Umbridge vote to convict Harry, while Amelia Bones votes to acquit.
  * Like both trials in the Lord High Steward’s Court and in the House of Lords, rulings in Harry Potter appear to be made by majority only rather than unanimity; Harry is acquitted although seven people vote to convict him.
  * There appear to be no appeals from determinations of either the Council of Magical Law or the Wizengamot. Fudge would have certainly liked to appeal the finding of the Wizengamot in _Order of the Phoenix_ , but he doesn’t.



There are some differences. As noted previously, there’s nothing in _Harry Potter_ to indicate that there are lawyers at all, and indeed the canonical texts seem to go out of their way to avoid the usual terms. Historical peer trials had advisory royal justices, commoners who were versed in the law, to advise the Lord High Steward, but there is no mention of any similar person in any of the canonical trial scenes. Peer trials were judicially independent; the Lord High Steward was not involved in investigating the facts of the alleged crime. Finally, sentences of peers did have to accord with the law, while it isn’t clear what limits the Wizengamot or the Council of Magical Law might have for the sentences they impose.

Overall, however, I submit to you that Wizarding Britain’s legal system is broadly based on the trial of peers in the 1500s and 1600s, and not on any modern legal system that we would recognize today.

* * *

## But what does it all mean?! Worldbuilding and the “Canonical” Wizarding Legal System

In a way, it makes quite a lot of sense that Wizarding Britain’s legal system is based on something dating from the 1500s and 1600s. The International Statute of Wizarding Secrecy was passed in 1689 and fully put into place by 1692[21], which would have isolated the wizarding world from the Muggle one and prevented the adoption of later Muggle legal reforms. For example, in the Muggle world, the Lord High Steward’s Court ceased to be used by the passage of the _Treason Act_ in 1695; but there’s no reason that an isolated wizarding world would know about this change or, even if they did, choose to adopt it. 1692 can therefore be taken as a point of divergence from the Muggle history books.

This section is, as promised, very much speculative. Here are some general ideas on worldbuilding, i.e. what kinds of developments would the canon support?

### Stratification of Society: Different Legal Rights and Privileges for Different Statuses

As mentioned before, the trial of peers in Great Britain developed alongside and in reaction to the developing common law. Therefore, the Ministry of Magic of 1692 could have made the choice for a common law system dating from the same era, which would have easily been more prevalent (commoners exceeded nobles in number) but _they did not do so_. This implies that the witches and wizards of the day saw themselves as nobles, or that a significant number of them were in fact noble, and that they adopted the noble system of justice for themselves.

One could go a little further down this line and tie it into pureblood politics, since purebloods were JKR’s analogue for the aristocracy. If so, one could adopt the dual system of the 1600s in its entirety, which would result in a parallel legal system only in effect for the lesser-blooded, with the model seen in the Muggle-born Registration Commission being the usual court for Muggle-borns or the lesser-blooded generally. Going down this road, however, one would need to find an explanation for why Harry Potter, a known half-blood, would be tried before the full Wizengamot. Would he be entitled by right to that sort of trial, or is it just his political prominence and they’re throwing him a bone, so to speak? If so, why does breaking a law to pursue Harry for allegedly breaking the law make political sense when they can likely hammer him more effectively and easily in the equivalent of a commoner (lesser-blooded) court?

An interesting possibility raised by rachel614 in the comments: does Harry, as a halfblood with a pureblood _father_ , occupy a higher blood social status than either Voldemort or Snape, who have pureblood _mothers_ but Muggle fathers? Notably, noblemen who bucked the trend and married commoners still had noble children, while noblewomen who married commoners tended to lose their status. Indeed, Harry receives few slurs on his blood or parentage in canon, while both Snape and Voldemort make bigger efforts to leave their pasts behind them (both of them abandoned, at least for a time, their fathers' names to take pride in their mothers' heritages).

### The Status of Magical Creatures

As an extension to the above, magical creatures are clearly treated differently by the legal system than witches and wizards. Particularly:

  * House-elves are sentient creatures, but no one except for Hermione is preoccupied with their treatment. The closest to a legal process we have in canon is Diggory’s questioning of Winky, and no one objects to the questioning happening there, either. The process also doesn’t look anything like any of the trial scenes in canon and was likely not meant to be a legal procedure at all, but the fact that no one objects suggests she has few, if any, legal rights.
  * There is a hearing and appeal process of some kind for Buckbeak, though we don’t see it. Every description of it, however, makes it seem like more of an administrative decision instead of a true trial.



Both could be explained by saying that magical creatures are, in general, considered to be property. Diggory’s deferral to Crouch in the _Goblet of Fire_ may simply be that Crouch owns Winky, while Buckbeak’s proceeding may have been more against Hagrid than against Buckbeak himself.

However, there do appear to be problems with simply saying that all magical creatures are property and have no rights at all. From a practical perspective, house-elves are sentient while hippogriffs are not—putting aside house-elf nature, would a house-elf who scratched someone be put to death as a dangerous creature?

There are also numerous other magical creatures, from goblins to centaurs to merpeople, who are far less likely to accept being “property”. In the case of the goblins, they both run Gringotts Bank and Harry spends most of a year learning about goblin rebellions.[22] What status do they have, if any? Are there rights that they possess, or are they considered outside the jurisdiction of the Wizarding British courts entirely? If a goblin commits a crime as against a witch or wizard, are they tried in the Wizarding British courts, or within a goblin system of their own devising?

In _Fantastic Beasts and Where to Find Them_ (the book, not the movie), the Department for the Regulation and Control of Magical Creatures divides all creatures into Beasts, Beings or Spirits.[23] Such a division could simply be for administration’s sake, but could also provide a basis for determining what rights and privileges particular classes might have under law. Goblins and house-elves are “Beings”, while centaurs, merpeople, and hippogriffs are “Beasts”. Centaurs and merpeople are “Beasts” by their own request, in protest of the fact that Hags and Vampires are considered “Beings”,[24] which could imply that the label has a legal significance beyond a mere administrative division.

### Legal Developments Since 1692

Over three hundred years, there is a lot of room for movement. I wouldn’t be surprised if, with Muggle-borns being added every generation to the population, legal reforms had occurred between 1692 and present-day to bring their proceedings closer to any of the legal systems existing today, whether common law, civil law, or other. Doing that is easy for a lot of purposes—but then, if one wants to stay close to canon, one needs to explain why every trial scene is very patently not a modern trial scene.

A more direct or instructive example might be to look towards countries that currently have an inquisitorial system as opposed to an adversarial system of criminal justice. It should be noted that the use of the word “inquisitorial” here is only an indicator that the judicial system isn’t fully independent—it doesn’t mean that there are no due process rights, which the modern civil law countries who use these systems have as just much as a common law systems. Japan, France, and Italy all have modern inquisitorial criminal justice systems, which could provide guidance on how things look behind the scenes if you were, for example, writing scenes about the inner workings of an Auror department.

Really, anything could have changed in 300 years. The key thing to keep in mind is that the usual assumptions that we have when it comes to trial scenes simply might not apply. There might not be lawyers as we understand them. There might not be judges as we understand them. There might not be due process, or the principles of fundamental justice, or codified criminal law at all. But there is a starting point, and a good place to begin is the question: how do I want the legal system to have changed for my fic purposes, and why?

* * *

## Conclusion

To summarize, I submit that there is a sound basis for concluding as follows:

  * Wizarding Britain’s legal system is fundamentally based on the trials of peers in Great Britain in the 1500s and 1600s.
  * Structurally, there is no separation whatsoever between the judiciary and the executive or legislative branches of government.
  * There is no judicial independence, and the Head of Magical Law Enforcement is involved both in the investigation into the facts of the case as well as the trial process.
  * There is no fixed number of people hearing a case, but verdicts are delivered by majority, not by unanimity.
  * There are no lawyers, and likely no automatic right to counsel.
  * Due process rights are limited or practically non-existent. There are likely no written decisions.
  * There are no appeals.
  * There are different rules for creatures, even sentient creatures, than there are for wizards. Given the history of this form of legal proceeding and the choices made, there is a strong argument that Wizarding Britain’s legal system is highly stratified, where different people of different statuses may have different rights and privileges.



Thank you for reading my essay of supreme nerdiness.

* * *

## References

[1] _Harry Potter and the Goblet of Fire_ , Chapter 30: The Pensieve.

[2] _Harry Potter and the Order of the Phoenix,_ Chapter 8: The Hearing

[3] _Harry Potter and the Deathly Hallows,_ Chapter 13: The Muggle-born Registration Commission.

[4] _Harry Potter and the Chamber of Secrets,_ Chapter 12: The Polyjuice Potion

[5] _Harry Potter and the Prisoner of Azkaban,_ Chapter 16: Professor Trelawney’s Prediction.

[6] _Harry Potter and the Goblet of Fire,_ Chapter 9: The Dark Mark

[7] _Harry Potter and the Goblet of Fire_ , Chapter 27: Padfoot Returns

[8] Wikipedia, _Privilege of Peerage_ , <https://en.wikipedia.org/wiki/Privilege_of_peerage>

[9] Lovell, C. R. (October 1949). "The Trial of Peers in Great Britain". _The American Historical Review_. **55** (1): 69–81. [doi](https://en.wikipedia.org/wiki/Doi_\(identifier\)):[10.2307/1841088](https://doi.org/10.2307%2F1841088). [JSTOR](https://en.wikipedia.org/wiki/JSTOR_\(identifier\)) [1841088](https://www.jstor.org/stable/1841088)

[10] 15 Edward III., st. 1, sec. 2. Quoted on Wikipedia _supra_ note 8, _ibid._

[11] _Supra_ note 9.

[12] _Ibid._

[13] _Ibid._

[14] _Ibid._

[15] _Ibid._

[16] _Ibid.; supra_ note 8.

[17] Wikipedia, _The Supreme Court of the United Kingdom_ , https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_Kingdom

[18] Patterson, A. (January 1998). _The Trial of Nicholas Throckmorton_ , Centre for Reformation and Renaissance Studies, Victoria University (Toronto, ON).

[19] _Supra_ note 9.

[20] _Ibid._

[21] _Harry Potter and the Deathly Hallows,_ Chapter 16: Godric’s Hollow; _Quidditch Through the Ages,_ Chapter 5: Anti-Muggle Precautions.

[22] _Harry Potter and the Goblet of Fire,_ Chapter 31: The Third Task

[23] _Fantastic Beasts and Where to Find Them._ The book, not the movie.

[24] _ibid_.

**Author's Note:**

> Thank you to legal reviewers REM and JAP, and to non-legal reviewers rujoma and RM for your feedback!


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